from the indeed,-they-are dept

We were somewhat surprised by the Associated Press' decision to sue news search engine Meltwater, because we couldn't see how the AP -- even with its absurdist interpretation of copyright law -- had any case. Meltwater works with companies to help them track news about themselves. While it's similar to a clipping service, it doesn't actually "clip" the news. Instead, just like Google News or other news search engines, it provides a headline, a snippet and a link to the full story. In other words, if the AP's argument gains traction, the AP may have effectively outlawed search engines. That's ridiculous. Among the AP's silly claims in the lawsuit (and there are many), is one that says because users can cut and paste AP stories from their original websites and "save" them in a Meltwater archive, Meltwater is guilty of violating copyright law. Under that argument, so is any email program or word processing program.

Either way, Meltwater has hit back with a response (embedded below) that pushes back on all of these points, explains pretty clearly how it doesn't actually infringe... and also claims that the AP's arguments amount to "copyright misuse":

Plaintiff’s claims are barred in whole or in part by the doctrine of copyright misuse.
Through this Complaint and through other means, Plaintiff seeks to misuse its limited copyright
monopoly to extend its control over the Internet search market more generally, thereby
improperly expanding the protections afforded by U.S. copyright law. Among other things, AP
has misused its copyright monopoly by demanding that third parties take licenses for search
results, which do not require a license under U.S. copyright law, and AP has also formed a
consortium (called NewsRight) with the purpose of further misusing its copyright monopoly to
extract licensing fees that exceed what the law allows.

Meltwater also brings up multiple other defenses, including a bunch of defenses highlighting how the AP failed to bring its lawsuit in a timely manner. They also point out that since the AP posts these articles freely on the web, there's an implied license that you can link to it and point people to the content.

There is, of course, also the AP's attempt to bring back the bogus "hot news" doctrine, which some companies like the AP have been trying to revive after it was considered a completely dead concept. So far, the courts aren't buying these hot news claims, and hopefully they get rejected here as well. Meltwater attacks the hot news claims head on with two interesting arguments. First, it claims that Section 230 protects it from any hot news claim. That's an interesting argument, though I'm not sure it really applies here. Separately, however, they argue (correctly, in my view) that hot news doesn't exist any more, effectively, because it's really a form of a copyright claim, and all state copyright claims (hot news is a state law issue) are preempted by federal copyright law. It would be nice to have a court officially kill off hot news as a concept, so here's a chance for that to happen.

Honestly, I still can't figure out what the AP thinks its doing here, other than trying to shake money out of a search engine because its execs remain too clueless on how to run the organization in this modern era.

Separately, however, they argue (correctly, in my view) that hot news doesn't exist any more, effectively, because it's really a form of a copyright claim, and all state copyright claims (hot news is a state law issue) are preempted by federal copyright law. It would be nice to have a court officially kill off hot news as a concept, so here's a chance for that to happen.

You might want to actually research that point, Mikey. To wit:

“Misappropriation” is not necessarily synonymous with copyright infringement, and thus a cause of action labeled as “misappropriation” is not preempted if it is in fact based neither on a right within the general scope of copyright as specified by [17 U.S.C. § ] 106 [specifying the general scope of copyright] nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy (under traditional principles of equity) against a consistent pattern of unauthorized appropriation by a competitor of the facts (i.e., not the literary expression) constituting “hot” news, whether in the traditional mold of [INS ], or in the newer form of data updates from scientific, business, or financial data bases.

H.R. No. 94–1476 at 132.

The hot news doctrine is very much alive and well. Some claims could be preempted, of course, but not all claims would be. Of course, you don't care about any of that...

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Up the top, to the left of the story, beneath "Filed Under", click the "hot news" link. Enjoy!

Also, this story highlights a case of attempted copyright scope creep. The copyright maximalists are always pushing for more government-granted monopoly privileges. We need congress critters who are a whole lot more sceptical about handing out any monopolies of any kind.

C'mon Mike, let's have a nuanced discussion about the hot news doctrine. You're trying to argue that it doesn't exist anymore, but that's demonstrably false. I can point to several courts applying the doctrine within the past year. But you don't care about that. You just want to spread your lies and manipulate people. You're incapable of having a nuanced discussion about the law. And it's the fact that you lie and refuse to engage those who point out your lies that makes you such a disgusting person.

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I'd love to have a reasoned debate with Mike. I've been trying to for years. I'd love to have a nuanced discussion about what remains of the hot news doctrine because I think it's an interesting topic. It's obviously not nearly as simple as "copyright preempts, next subject" which is Mike's broadbrushing of the issue. Most doctrines are heavily nuanced. Mike ignores all that, spouts his super-simplified version, and then moves on. He hasn't the time or skills or inkling to debate those who point out the nuances. Nope. He complains about lack of nuance while creating one of the most superficial atmospheres imaginable. It's a shame that he doesn't actually engage the substance of his detractors' arguments.

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It's ridiculous to assert that "IP bullshitters" want to do away with privacy. Give me a break. That's the exact sort of baseless nonsense that unfortunately runs rampant on Techdirt. Mike laments the lack of nuance, but everything he does sets the tone--and that sort of faith-based, idiotic, nonsensical extremism is precisely what Mike reaps and sows.

Sorry, Mike, but Techdirt sucks because you make it suck. The lack of nuance is your own fault. Take my issue here with the hot news doctrine. You simply misunderstand the doctrine, and the fact that you think it doesn't exist is just wishful, faith-based thinking. I can very easily, and definitively, explain to you how you have hot news wrong. But you're not interested in getting it right. Years from now, you'll be saying how hot news doesn't really exist since you think it's preempted by copyright. Even though that's not quite true, it's what you want to be the truth, so you'll just keep saying it. You do this sort of thing with pretty much every issue of law or set of facts I've ever seen you touch.

Where's the nuance, Mike? Where's the leadership? Techdirt is a shithole because you can't be bothered to actually do any research or understand anything. You just jump to conclusions, ignore those who would explain your errors, and repeat. Give me a break with your whining about lack of nuance. You don't bring nuance to anything. You're the king of broadbrusing and ignoring everything you just don't want to see. It's absolutely ridiculous. I've never seen a more closed-minded person in my life.

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Wow. You really must be new here if you honestly believe that Mike does no research. And if the site sucks that much, then why are you so interested in debating anything? It's apparent that you don't really care one way or the other, it's just another whine-fest for you to point at.

In that article, Mike says "hot news is preempted by federal copyright law." That's not exactly what the court said there. They held that the particular claim before the court was preempted by copyright, but not that hot news in general was. If copyright actually preempted hot news, then the analysis would be easy--all hot news claims would fail. But Mike, unable to understand any sort of nuance in the law, completely misstates the court's holding and reasoning. He sees what he wants to see, makes faith-based conclusions, and spreads his lies to his flock. Just like all the great cult leaders.

And then Mike writes this article, pointing to that incorrect article as foundation. It's error built upon error. He might do research, but he doesn't do proper research. He's so incredibly blinded by his own bias and prejudice that he gets it wrong practically every time. And the fact that he's so smart convinces me that these "errors" are intentional. Mike Masnick is a master manipulator and liar. He doesn't have an honest bone in his body. All he cares about is spreading lies and abolishing IP at all costs.

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Oh, and by the way. Ask Mike if he actually researches articles before posting them. I've asked several times, and the few times that he answers, it's only to ask me back if I do research before commenting in the comments. He never just answers the question (Mike is infamous for dodging simple questions and generally acting like a dishonest snake). The implication from his answer is that it's just as proper for him not to research an article as it is for the commentators not to research their comments. Only a dishonest, disgusting, monster of a human being could walk around like that. I don't care that Mike believes what he believes. I just care that he lies and manipulates his readers while shitting on IP law, which is something I care about.

Nuance

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Nuance is the difference between "OMFG AP wants to destroy all search engines and email because you can copy and paste !!!!" and "AP is suing Meltwater because Meltwater is making money off the AP's content without permission."

In other words, nuance is the difference between what Mike says and what's actually accurate.